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Court decision keeps the Galilee Basin mining dream alive

The Supreme Court decision regarding the judicial review application of the Land Court’s recommendations for Alpha coal mine evidences the robust nature of the assessment and approval process under Queensland law.

The Alpha coal mine approvals

The Coast and Country Association of Queensland Inc v Smith & Anor; Coast and Country Association of Queensland Inc v Minister for Environment and Heritage Protection & Ors [2015] QSC 260 (JR application) concerns Hancock Coal Pty Ltd’s application for a mining lease and an environmental authority for the proposed Alpha coal mine, an open-cut mine in the Galilee basin. On 18 September 2008, the Alpha coal project for the mine was declared a significant project for which an environmental impact assessment is required. Subsequently, the Queensland Coordinator-General recommended the approval of the project, making a further recommendation as to the possible conditions to be attached to the approval. During the public objection period, numerous parties lodged objections to the mining lease and draft environmental authority, each being referred to the Land Court.

The JR application was initiated by Coast and Country Association of Queensland (CCAQ). Following the grant of the mining lease and environmental authority, CCAQ made four submissions, each being rejected by the Supreme Court as follows:

The Land Court did not have power to make alternative recommendations, this was rejected by the Supreme Court, which found that since “the purpose of [the legislation] is for the Land Court to make recommendations, it seems to be impractical to construe them to limit so strictly the range of recommendations that it may make”

The Land Court's decision lacked finality because it depended on a further approval process under the Water Act 2000 (Qld). The Supreme Court rejected this and found that the recommendations of the Land Court were designed to ensure that evidence about the groundwater impacts of the Alpha coal mine would be satisfactorily addressed if the relevant Ministers decided to grant the mining lease and environmental authority.

The Land Court was required to be satisfied that the grant of a mining lease and environmental authority would produce a “net benefit” to the economy, by the provisions of the Mineral Resources Act 1989 (Qld). The Supreme Court found that there is no statutory requirement for a “net benefit” test, and the Land Court need only take into account the required statutory considerations.

The Land Court erred by finding that it was outside its jurisdiction to consider the impacts of scope 3 greenhouse gas emissions (emissions from the transportation and burning of coal of the mine by other people). The Supreme Court concluded that the factual finding by the Land Court that, whether or not the Alpha coal mine proceeds, there will be no effect on the global demand for coal and therefore no effect on the amount of greenhouse gases emitted globally, was one available on the evidence and within its jurisdiction to make.

The Supreme Court also rejected arguments that subsequent conduct by Ministers was invalid.

Interestingly, the Supreme Court did not itself confirm that the requirements for judicial review were met by the application, holding that such a decision was unnecessary. This means there remains a risk that a third party will use this novel approach to seek to challenge a Land Court recommendation again in the future.

Implications for proponents

The decision is important as it demonstrates the robust nature of the Queensland assessment and approval process for resources activities. The ruling in favour of Hancock Pty Ltd included an order that CCAQ pay certain costs of Hancock Pty Ltd and this may act as a future deterrent to environmental groups if their legal challenges lack substantial merit.

Compare jurisdictions: Arbitration

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